concept of natural justice

8/9/2019 Concept of Natural Justice

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Contents

Concept of Natural Justice................................................................................................... 1

Definition......................................................................................................................... 1

History of the growth of Natural Justice.......................................................................... 2

Two Rules of Natural Justice.............................................................................................. 3

Right to a Fair Hearing..................................................................................................... 3

At a Glance................................................................................................................... 3

Scope of Fair Hearing................................................................................................... 5

Aspects of a fair hearing............................................................................................... 6

Rule Against Bias........................................................................................................... 12

At a Glance................................................................................................................. 12

Scope of the Rule against Bias................................................................................... 12

Forms of bias.............................................................................................................. 13

Application of Natural Justice in Administrative Law ...................................................... 17

Application of Natural Justice in Bangladesh................................................................... 22

The Constitution............................................................................................................. 22

The Case Laws............................................................................................................... 22

Natural Justice as Mechanism to Diminish Arbitrary Discretion...................................... 25

Conclusion......................................................................................................................... 27


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Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

Natural Justice : An Effective Mechanism

to Diminish Arbitrary Exercise

of Discretionary Power

1. Concept of Natural Justice

1.1. Definition

Natural Justice is an important concept in administrative law. The principles of natural

justice of fundamental rules of procedure is the preliminary basis of a good

administrative set up of any country. Natural justice represents higher procedural rules

developed by judges, which every administrative authority must follow in taking any

decision adversely affecting the rights of a private individual.1Certain fundamental rules

which are so necessary to the proper exercise of power that they are projected from the

judicial to the administrative sphere.2In fact, natural justice is price of the rule of law. 3

It could just be referred to as Procedural Fairness, with a purpose of ensuring that

decision-making is fair and reasonable. This very concept has meant different things to

different peoples at different times. In its widest sense, it was formerly used as a

synonym for natural law. It has been used to mean that reasons must be given for

decisions; that a body deciding an issue must only act on evidence of probative value.

Some have asserted that the maxim Actus non facit reum, nisi mens sit reais a principle

of natural justice.4Whatever the meaning of natural justice may have been, and still is to

other people, the common law lawyers have used the term in a technical manner to mean

that in certain circumstances decisions affecting the rights of citizens must only be

1 Dr. I. P. Massey. Administrative Law, p. 170 (2ndedn.)2 H. W. R. Wade, Administrative Law, p. 154 (2

ndedn.)

3S. M. Sikri, J, in Board of H. S. & I. E., U. P. Vs. Chitra, AIR 1970 SC 1039, 10404Paul Jackson: Natural Law (1973) pp. 1-2


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reached after a fair hearing has been given to the individual concerned. And in this

context fair hearing requires two things, namely,AUDI ALTERAM PARTEM and NEMO

DEBET ESSE JUDEX IN PROPRIA SUA CAUSA.

1.2. History of the growth of Natural Justice

Natural justice denotes specific procedural rights in the English legal system and the

systems of other nations based on it. It is similar to the American concepts of fair

procedure and procedural due process, the latter having roots that to some degree

parallel the origins of natural justice. Natural justice is identified with the two

constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or

"no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem,or "hear the other side").

The requirements of natural justice or a duty to act fairly depend on the context. InBaker

v. Canada (Minister of Citizenship and Immigration) (1999), the Supreme Court of

Canada set out a list of non-exhaustive factors that would influence the content of the

duty of fairness, including the nature of the decision being made and the process followed

in making it, the statutory scheme under which the decision-maker operates, the

importance of the decision to the person challenging it, the person's legitimate

expectations, and the choice of procedure made by the decision-maker.

Earlier, inKnight v. Indian Head School Division No. 19 (1990), the Supreme Court held

that public authorities which make decisions of a legislative and general nature do not

have a duty to act fairly, while those that carry out acts of a more administrative and

specific nature do. Furthermore, preliminary decisions will generally not trigger the duty

to act fairly, but decisions of a more final nature may have such an effect. In addition,

whether a duty to act fairly applies depends on the relationship between the public

authority and the individual. No duty exists where the relationship is one of master and

servant, or where the individual holds office at the pleasure of the authority. On the other

hand, a duty to act fairly exists where the individual cannot be removed from office


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except for cause. Finally, a right to procedural fairness only exists when an authority's

decision is significant and has an important impact on the individual.

2. Two Rules of Natural Justice

The principles of Natural Justice are a part of the legal and judicial procedures and it

comprises of two concepts, namely

(a)Audi alteram partem, or the right to fair hearing

(b)Nemo judex in sua causa,or the no man can be a judge in his own cause

The first principle is known as rule of fair hearing and the second as rule against bias.The first rule is based on common sense. It goes without saying that a decision which is

arrived at through the understanding of all the issues involved will be more rational. The

rule against bias ensures that a judge is not partial. He should not be influenced by

personal interest; for jurists and laymen alike have insisted that justice should be

manifestly seen to have been done. Where the judge has interest in the subject matter, or

in the party, or his own financial interest is involved, the objectivity of his decision is

bound to be questionable.

2.1. Right to a Fair Hearing

2.1.1. At a Glance

The essentials of the rule of procedural fairness are as follows:

I.

The respondent must be given full details of the accusations. That is, the

factual issues and allegations to be examined and discussed should be specified

in sufficient detail to enable adequate preparation of a defence and a reasonable

opportunity of adequate refutation.

II.

Relevant documents used in judgment on a case must be disclosed to both

parties.


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Natural Justice: An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power 4

III.

Decisions to admit or exclude evidence should be based on whether it is

relevant, reliable and logically valid, capable of being tested in some form. The

evidentiary basis for determination in harassment and discrimination cases is

on the balance of probabilities as opposed to beyond all reasonable doubt.IV.

There should not be undue delay in hearing the matter. (If a

complainant/respondent fails to appear on a number of occasions the case

might be determined on the evidence of the party appearing).

V.

Notice of a hearing or conciliation conference should be serviced on the parties

with reasonable time to enable them to prepare their case. The time and place

must be clearly specified.

VI.

Unless there are exceptional circumstances, do not hear one side in the absence

of the other.

VII.

Give each party the opportunity to state their case adequately.

VIII.

Give each party the opportunity to correct or contradict any statement

prejudicial to their case.

IX.

Witnesses, if any, should be examined or questioned and allowed to be

questioned by the other party. Adequate time should be allowed for this cross -

examination.

X.

If there are different allegations by different complainants against the same

respondent in the same subject area, it may be a breach of procedural fairness

to hear the evidence or allegations together rather than separately as one may

unreasonably influence the other.5It is also improper in such a case to inform

the complainants of the nature or details of each others complaints.

5Chambers v James Cook University 1995


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2.1.2. Scope of Fair Hearing

It is fundamental to fair procedure that both sides should be heard.6The right to a fair

hearing requires that individuals are not penalized by decisions affecting their rights or

legitimate expectations unless they have been given

I.

prior notice of the cases against them,

II.

a fair opportunity to answer them, and

III.

the opportunity to present their own cases.7

Besides promoting an individual's liberties, the right to a fair hearing has also been used

by courts as a base on which to build up fair administrative procedures. It is now well

established that it is not the character of the public authority that matters but the character

of the power exercised.8 However, in the United Kingdom prior to Ridge v. Baldwin

(1963),9 the scope of the right to a fair hearing was severely restricted by case law

following Cooper v. Wandsworth Board of Works (1863).10 In R. v. Electricity

Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. (1923),

Lord Atkin observed that the right only applied where decision-makers had "the duty to

act judicially".11

In natural justice cases this dictum was generally understood to mean

that a duty to act judicially was not to be inferred merely from the impact of a decision on

the rights of subjects; such a duty would arise only if there was a "superadded" express

obligation to follow a judicial-type procedure in arriving at the decision.12

6Wade & Forsyth, p. 402.7Thio Li-ann (1999), "Law and the Administrative State"8Wade & Forsyth, p. 405.9UKHL 210

Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 18011Ex parte London Electricity Joint Committee Co. (1920), Ltd., p. 205.12De Smith's Judicial Review, p. 330.


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2.1.3. Aspects of a fair hearing

Prior notice of hearing

Natural justice allows a person to claim the right to adequate notification of the date,

time, place of the hearing as well as detailed notification of the case to be met. This

information allows the person adequate time to effectively prepare his or her own case

and to answer the case against him or her. In Cooper v. Wandsworth,13

Chief Justice

William Erle went so far as to state that the lack of notice and hearing afforded to Cooper

could be said to be a form of abuse, as he had been treated as if he did not matter. As

Lord Mustill famously held inR. v. Secretary of State for the Home Department, ex parte

Doody (1993): "Since the person affected usually cannot make worthwhilerepresentations without knowing what factors may weigh against his interests fairness

will very often require that he is informed of the gist of the case which he has to

answer."14

It has been suggested that the requirement of prior notice serves three important

purposes:

1.

The interest in good outcomes giving prior notice increases the value of the

proceedings as it is only when the interested person knows the issues and the

relevant information that he or she can make a useful contribution.

2. The duty of respectthe affected person has the right to know what is at stake,

and it is not enough to simply inform him or her that there will be a hearing.

3. The rule of law notice of issues and disclosure of information opens up the

operations of the public authority to public scrutiny.

13Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180, 143 E.R. 414

14R. v. Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8, [1994] 1 A.C. 531

at 560


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The British courts have held it is not enough for an affected person to merely be informed

of a hearing. He or she must also be told what is at stake; in other words, the gist of the

case.

Opportunity to be heard

Every person has the right to have a hearing and be allowed to present his or her own

case. Should a person not attend the hearing, even with adequate notice given, the

adjudicator has the discretion to decide if the hearing should proceed. In Ridge v.

Baldwin,a chief constable succeeded in having his dismissal from service declared void

as he had not been given the opportunity to make a defence. In another case, Chief

Constable of the North Wales Police v. Evans (1982), a chief constable required a police

probationer to resign on account of allegations about his private life which he was given

no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful.

Likewise in Surinder Singh Kanda v. Government of the Federation of Malaya (1962),a

public servant facing disciplinary proceedings was not supplied with a copy of a

prejudicial report by a board of inquiry which the adjudicating officer had access to

before the hearing. The Privy Council held that the proceedings had failed to provide him

a reasonable opportunity of being heard.

However, this requirement does not necessarily mean the decision-maker has to meet the

complainant face to face "Natural justice does not generally demand orality".15It has

been suggested that an oral hearing will almost be as good as useless if the affected

person has no prior knowledge of the case. InLloyd v. McMahon (1987),an oral hearing

did not make a difference to the facts on which the case was based. Giving judgment in

the Court of Appeal of England and Wales, Lord Justice Harry Woolf held that an oral

hearing may not always be the "very pith of the administration of natural justice". 16It has

15R. (Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [2001] EWCA Civ 32916Lloyd v. McMahon [1987] 1 A.C. 625, C.A. (England & Wales) and H.L. (United Kingdom).


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also been suggested that an oral hearing is only required if issues concerning deprivations

of legal rights or legally protected interests arise.

Conduct of the hearing

When deciding how the hearing should be conducted, the adjudicator has to ask whether

the person charged has a proper opportunity to consider, challenge or contradict any

evidence, and whether the person is also fully aware of the nature of the allegations

against him or her so as to have a proper opportunity to present his or her own case.17

In

Secretary of State for the Home Department v. AF (2009), Lord Phillips of Worth

Matravers said:

The best way of producing a fair trial is to ensure that a party to it has the fullest

information of both the allegations that are made against him and the evidence relied

upon in support of those allegations. Where the evidence is documentary, he should have

access to the documents. Where the evidence consists of oral testimony, then he should be

entitled to cross-examine the witnesses who give that testimony, whose identities should

be disclosed.18

The right to be heard in answer to charges before an unbiased tribunal is illustrated in the

Singapore case Tan Boon Chee David v. Medical Council of Singapore (1980).During a

disciplinary hearing, council members were either not conscientious about their

attendance or did not attend the whole course of proceedings. This meant they did not

hear all the oral evidence and submissions. The High Court held that this had

substantially prejudiced the appellant and constituted a fundamental breach of natural

justice. On the other hand, mere absence from a hearing does not necessarily lead toundue prejudice. It was held in Re Teo Choo Hong (1995) that the function of a lay

member of a lawyers' disciplinary committee was to observe and not cast a vote or make

a judgment. Thus, the appellant had not suffered undue prejudice.

17Kay Swee Pin v. Singapore Island Country Club [2008] 2 S.L.R.(R.) 802 at 806, para. 7.18Secretary of State for the Home Department v. AF [2009] UKHL 28


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On the basis of reciprocity, if one side is allowed to cross-examine his legal opponent at a

hearing, the other party must also be given the same opportunity.19

In addition, when a

tribunal decides a case on a basis not raised or contemplated by the parties, or decides it

without regarding the submissions and arguments made by the parties on the issues, thiswill amount to a breach of natural justice.20However, a genuine bona fide mistake by an

adjudicator in omitting to state reasons for not considering a submission is not enough to

be a breach of natural justice.21

This may occur when the submissions were accidentally

omitted, or were so unconvincing that it was not necessary to explicitly state the

adjudicator's findings.

Right to legal representation

There is no inherent common law right to legal representation before a domestic tribunal.

A tribunal has the discretion to admit either a legally qualified or unqualified counsel to

assist the person appearing before it, based on the facts of the case. 22 When assessing

whether a party should be offered legal assistance, the adjudicator should first ask

whether the right to be heard applies, and, secondly, whether counsel's assistance is

needed for an effective hearing given the subject matter, bearing in mind the

consequences of such a denial.

InR. v. Secretary of State for Home Department, ex parte Tarrant (1983), Webster J. set

out six factors to be considered when deciding whether to allow representation by

counsel, namely:

1. the seriousness of the charge and the potential penalty;

2.

whether any points of law are likely to arise.;3. whether the prisoner is capable of presenting his own case;

19Howe Yoon Chong v Chief Assessor [19771978] S.L.R.(R.) 386, H.C. (Singapore).20

Front Row Investment Holdings (Singapore) Pte. Ltd. v. Daimler South East Asia Pte. Ltd. [2010]21SEF Construction Pte. Ltd. v. Skoy Connected Pte. Ltd. [2010] 1 S.L.R. 73322Kok Seng Chong v. Bukit Turf Club [1992] 3 S.L.R.(R.) 772, H.C. (Singapore).


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4.

whether they are any procedural difficulties faced by prisoners in conducting their

own defence;

5.

whether there is reasonable speed in making the adjudication; and

6.

whether there is a need for fairness between prisoners or between prisoners andprison officers.

It has also been suggested that where a tribunal hearing concerns the individual's

reputation or right to livelihood, there is a greater need for allowing legal representation

as this vindicates the idea of equality before the law.23

When one refuses legal representation, one cannot expect to receive a higher "standard"

of natural justice. This was enunciated in Singapore in Ho Paul v. Singapore Medical

Council (2008).Dr. Ho, who had been charged with professional misconduct, chose to

appear before the Council in person and declined to cross-examine the Council's key

witness. Subsequently, he argued that he should have been warned of the legal

implications of not being legally represented. The High Court rejected this argument and

held he had suffered no prejudice. Dr. Ho had been given a fair opportunity of presenting

his own case and, most importantly, had not been deprived of his right to cross-examine

the witnesses.

It is also not a court's obligation to provide assistance when a party presents his or her

case without legal representation. InRajeevan Edakalavan v. Public Prosecutor (1998),24

the accused had appeared in person before a magistrate and had entered a plea of guilt.

He later petitioned the High Court for criminal revision, arguing that as the magistrate

had not informed him of the defences available to him, his plea had been equivocal. The

Court held:

The onus [of informing the accused of his defence options or what could be

more advantageous to his case] does not shift to the judge (or the Prosecution, for

23Doresamy v. Public Services Commission [1971] 2 M.L.J.24Rajeevan Edakalavan v. Public Prosecutor [1998] 1 S.L.R.(R.) 10, H.C. (Singapore)


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that matter) simply because the accused is unrepresented. That will be placing too

onerous a burden on the judge. Furthermore, the judge will be performing two

completely incompatible and irreconcilable roles one as the adjudicator, the

other as the de facto defence counsel.

In Singapore, the right to legal representation is contingent on the nature of the inquiry.

However, since Article 12 of the Constitution of Singapore guarantees equal protection

under the law, it has been suggested that greater weightage should be accorded to this

procedural right when balancing it against the competing demand of efficiency.

The decision and reasons for it

Currently, the principles of natural justice in the United Kingdom and certain other

jurisdictions do not include a general rule that reasons should be given for decisions. In

R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw (1951), Denning

L.J. stated:

"I think the record must contain at least the document which initiates the

proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor

the reasons, unless the tribunal chooses to incorporate them. If the tribunal does

state its reasons, and those reasons are wrong in law, certiorari lies to quash the

decision."

It has been stated that "no single factor has inhibited the development of English

administrative law as seriously as the absence of any general obligation upon public

authorities to give reasons for their decisions".25

25Keith Frank Goodfellow (1971), Administration under Law: A Report by JUSTICE, London


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2.2. Rule Against Bias

2.2.1. At a Glance

I.

If a person has preconceived opinions or personal involvement in a matter they

should not attempt to settle it.

II.

A conciliator previously involved in trying to resolve a matter should not sit ona panel hearing the complaint.Conciliators are charged with the task of

assisting both parties to settle complaints amicably .... there must be a full, fair

and detached assessment of the strengths and weaknesses of both sides and

of the possible remedies.26

Foremost rules and procedures to be followed by any person or body charged with the

duty of adjudicating upon disputes:

1. Act fairly:

I.

in good faith

II.

without bias

III. and in a judicial temper

2. Give each party the opportunity to state their case adequately:

I.

to correct or contradict any statement prejudicial to their case

II.

to not hear one side in the absence of the other

3. Not to act in your own cause - declare any interest

4. Gain full knowledge of the accusations

5. Ensure relevant documents used in judgment of a case are disclosed to both

parties

2.2.2. Scope of the Rule against Bias

A person is barred from deciding any case in which he or she may be, or may fairly be

suspected to be, biased. This principle embodies the basic concept of impartiality,27and

applies to courts of law, tribunals, arbitrators and all those having the duty to act

judicially.28A public authority has a duty to act judicially whenever it makes decisions

26Einfield J in his judgment in Hall & Ors v Shaban & Anor (1988) EOC 92-227 (At pp 77,

142

27 Surinder Singh Kanda v. Government of the Federation of Malaya [1962] UKPC 228Lord Mackay of Clashfern, ed.-in-chief (2010)


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that affect people's rights or interests, and not only when it applies some judicial-type

procedure in arriving at decisions.

The basis on which impartiality operates is the need to maintain public confidence in the

legal system. The erosion of public confidence undermines the nobility of the legal

system, and leads to ensuing chaos.29

The essence of the need for impartiality was

observed by Lord Denning, the Master of the Rolls, in Metropolitan Properties Co.

(F.G.C.) Ltd. v. Lannon (1968):30

"Justice must be rooted in confidence and confidence is destroyed when right-

minded people go away thinking: 'The judge was biased."31

Public confidence as the basis for the rule against bias is also embodied in the often-

quoted words of Lord Hewart, the Lord Chief Justice of England and Wales, that

"[i]t is not merely of some importance, but of fundamental importance that justice

should not only be done, but should manifestly be seen to be done".32

2.2.3. Forms of bias

Actual and imputed bias

A portrait of the Lord Chancellor, Lord Cottenham (Charles Pepys, 1st Earl of

Cottenham, 17811851), by Charles Robert Leslie. In Dimes v. Grand Junction Canal

Proprietors (1852), his Lordship was disqualified from hearing a case as he had a

pecuniary interest in the outcome.

29Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board [2005] 4 SLR30

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [1968] EWCA Civ 531Metrpolitan Properties, p. 59932R. v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256 at 259, High court (Kings Bench)


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Bias may be actual, imputed or apparent. Actual bias is established where it is actually

established that a decision-maker was prejudiced in favour of or against a party.

However, in practice, the making of such an allegation is rare as it is very hard to prove.33

One form of imputed bias is based on the decision-maker being a party to a suit, or

having a pecuniary or proprietary interest in the outcome of the decision. Once this fact

has been established, the bias is irrebuttable and disqualification is automatic the

decision-maker will be barred from adjudicating the matter without the need for any

investigation into the likelihood or suspicion of bias.34

A classic case isDimes v. Grand Junction Canal Proprietors (1852), which involved an

action between Dimes, a local landowner, and the proprietors of the Grand Junction

Canal, in which the Lord Chancellor, Lord Cottenham, had affirmed decrees made to the

proprietors. However, it was discovered by Dimes that Lord Cottenham in fact owned

several pounds worth of shares in the Grand Junction Canal. This eventually led to the

judge being disqualified from deciding the case. There was no inquiry as to whether a

reasonable person would consider Lord Cottenham to be biased, or as to the

circumstances which led Lord Cottenham to hear the case.

In certain limited situations, bias can also be imputed when the decision-maker's interest

in the decision is not pecuniary but personal. This was established in the unprecedented

case of R. v. Bow Street Metropolitan Stipendiary Magistrate,ex parte Pinochet Ugarte

(No. 2) (1999).35

In an appeal to the House of Lords, the Crown Prosecution Service

sought to overturn a quashing order made by the Divisional Court regarding extradition

warrants made against the ex-Chilean dictator, Senator Augusto Pinochet. Amnesty

International (AI) was given leave to intervene in the proceedings. However, one of the

judges of the case, Lord Hoffmann, was a director and chairperson of Amnesty

International Charity Ltd. (AICL), a company under the control of AI. He was eventually

33Chee Siok Chin v. Attorney-General [2006] SGHC 153

34Dimes v. Grand Junction Canal Properties (1852) 3 H.L. Cas. 759, 10 E.R. 301, House of Lords (UK)35UKHL 1


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disqualified from the case and the outcome of the proceedings set aside. The House of

Lords held that the close connection between AICL and AI presented Lord Hoffmann with

an interest in the outcome of the litigation.

Even though it was non-pecuniary, the Law Lords took the view that the interest was

sufficient to warrant Lord Hoffmann's automatic disqualification from hearing the case.

InLocabail (U.K.) Ltd. v. Bayfield Properties Ltd. (1999),36

the Court of Appeal warned

against any further extension of the automatic disqualification rule, "unless plainly

required to give effect to the important underlying principles upon which the rule is

based".37

Apparent bias

Apparent bias is present where a judge or other decision-maker is not a party to a matter

and does not have an interest in its outcome, but through his or her conduct or behaviour

gives rise to a suspicion that he or she is not impartial.38

Effect of a finding of bias

In Dimes, the judges advised the House of Lords that Lord Cottenham's pecuniary

interest made his judgment not void, but voidable. This advice is not wrong in the context

of a judicial act under review, where the judgment will be held valid unless reversed on

appeal.39

However, in the cases of administrative acts or decisions under judicial review, the court

can only intervene on the grounds of ultra vires,40hence making the judgment void. Lord

Esher said inAllison v. General Council of Medical Education and Registration (1894)41

36Locabail (UK) Ltd. v. Bayfield Properties Ltd. (1999) EWCA Civ 300437Locabil, p. 46538Ex parte Pinochet, pp. 132-13339

F. Forsyth (2009), Administrative Law (10th ed.), Oxford; New York40Wade & Forsyth, p. 401.41Allison v. General Council of Medical Education and Registration [1894] 1 Q.B. 750


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that the participation of a disqualified person "certainly rendered the decision wholly

void".42

Some cases decided in India shed further light on the issue of bias. It is well settled that

as regards pecuniary interest, the slightest trace will disqualify any person from acting as

a judge. The Supreme Court of India in Secretary to Government Transport Department

vs. Munuswamy, 1988 (Suppl) SCC 651 (AIR 1988 SC 2232), held that a predisposition

to decide for or against one party without proper regard to the true merits of the dispute is

bias.

The Supreme Court of India in International Airport Authority vs. K. D. Bali AIR 1988

Supreme Court 1099 observed, "the purity of administration requires that the party to the

proceedings should not have apprehension that the authority is biased and is likely to

decide against the party. But it is not every suspicion felt by a party which must lead to

the conclusion that the authority hearing the proceedings is biased. The apprehension

must be judged from a healthy, reasonable and average point of view and not on mere

apprehension of a whimsical person.

The Supreme Court of India in Ashok Kumar Yadav vs. State of Haryana AIR 1987 SC

454 observed, 'It is one of the fundamental principles of our jurisprudence that no man

can be a judge in his own cause and that if there is a reasonable likelihood of bias it is in

accordance with natural justice and commonsense that the justice likely to be so biased

should be incapacitated from sitting.'

The question is not whether the judge is actually biased or decides partially, but whether

there is a real likelihood of bias.

42Allison, p. 757.


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3. Application of Natural Justice in Administrative Law

3.1. General instances

In the regulation of Trade and Commerce Generally, where a persons right to carry ontrade and commerce is restricted, it is necessary that the administration should give a fair

hearing and apply natural justice to the affected persons case.43

Licensing- Licensing is a common administrative technique used to regulate any

activity. Cancellation of a license is a quasi- judicial activity because it involves civil as

well as pecuniary consequences as the licensee cannot carry on his business without a

license. Therefore, officially principles of Natural Justice cannot be applied in the process

of cancelling a license.44

However, the refusal to grant a license or suspension of license

before actually cancelling it is an administrative function and principles of natural justice

should be applied in these cases.45

In the taking over of management of an undertaking- If the government, after an

investigation finds out that the management of a public undertaking is being managed by

inefficient persons and in such manner which is detrimental to public interest, the

government may take over the management in its hands. However, in this case it has to

adhere to the principles of natural justice.46

43Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 at 832.

44North Bihar Agency v. State of Bihar, AIR 1981 SC 1758

45Krishnagopal Dutta v. Regional Transport Authority, Burdawan, AIR 1970 Cal 104

46Supra, n.1. 8


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Miscellaneous Situations

Powers of search and seizure- The powers of search and seizure are extraordinary

powers in the hands of the state for the protection of social security47

which is of an

extreme nature and constitutes a serious invasion of the privacy, reputation, business and

freedom of the affected person. Although the power of search may not take into

consideration the natural justice, the power of seizure cannot afford to ignore natural

justice. Similarly, the power of confiscation cannot be exercised without the affected

party being given an opportunity of being heard.48

Discretionary powers- Discretionary powers are subject to control and fair hearing

before the decision-making bodies and they may act as a control mechanism on the

decision-making powers. However, discretionary action may comprise of dominant

element, such as, a major administrative policy, economic or any threat to the community

which may negate the idea of fair hearing.49

Supersession of Statutory bodies and Municipal Corporations- The principle of

natural justice must be observed when the government suspends bodies, such as

panchayats,50

or when it appoints an administrator for a registered society in public

interest.51

The government will also allow natural justice when it decides to supercedes a

municipal corporation.

47M P Sharma v, Satish Chandra, District Magistrate Delhi, AIR 1954 SC 300.

48 Assistant Collector of Customs and Superintendent, Preventive Service Customs, Calcutta v. Charan

Das Malhotra, AIR 1972 SC 689.

49Sadhu Singh v. Delhi Administration, AIR 1966 SC 91.

50T V R V Radhakrishnan Chettiar v. State of Tamil Nadu, AIR 1974 SC 1862.

51Jathedar Jagdev Singh v. State of Punjab, AIR 1982 P & H 16.


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Government Contracts-When the government is under contract with a private party and

where the action has statutory basis, the principles of natural justice is applicable.52

Blacklisting- Under a modern administrative technique, a person is blacklisted for the

purpose of disqualifying him for certain purposes and after which he is not eligible to

deal with the concerned authority of the area.53

Blacklisting is an oppressive instrument

which is characterised by both legal and constitutional impropriety. However, before a

person is blacklisted, he eligible of a fair hearing against the proposed action.54

Right to Property- A person whose property rights are adversely affected by any

administrative action is entitled to natural justice. Before passing orders to demolish a

house, the concerned administrative authorities must give the occupant a show cause

against such orders.55

Similarly, in cases of land acquisition by the government for public purposes, the

collector, who is responsible for holding an inquiry and then submitting his report to the

government, must follow the principles of natural justice.56

Withdrawal of benefits-When the government withdraws a benefit conferred by it on a

person, the person is entitled to a fair and just hearing. The government must also follow

natural justice principle when an ex gratia benefit already sanctioned in to be

withdrawn.57

52State of Haryana v. Ram Kishan, AIR 1988 SC 1301.

53Wade, CONSTITUTIONAL FUNDAMENTALS 1980 p.55.54Erusian Equipment and Chemicals Ltd v. State of West Bengal, AIR 1975 SC 266. 55Pratap V. Soni v. Gandhidham Development Authority, AIR 1985 Guj 68.

56Under the Land Acquisition Act, 1894, s 6.57G Ramasubbu Pillai v. Government of India, AIR 1980 Mad 23.


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3.2. Specific Instances

Disciplinary Action

Against students- Before a student faces disciplinary action, such as expulsion from the

institution, or cancelling of his examination results, he is entitled to fair hearing on the

principles of natural justice by the authorities concerned.58 However, in cases where a

student is expelled from the educational institution on the grounds of academics, the case

is different and he is not entitled to natural justice.59

Against employees of Public Authorities- For dismissing and terminating the service

of an employee who is employed under a public authority, a hearing must be given to theaffected person.

60In specific cases where service conditions of employees are governed

by statutory provisions, the natural justice provisions must be read into the statute in the

case of termination of the employment. If there are no statutory provisions to govern the

service conditions of employees, still natural justice should be observed while taking

disciplinary action against them.61

Against Government servants- A civil servant of the government cannot be dismissed

or removed in rank unless an inquiry is held and in which he is informed of the charges

against him. He is also entitled to a reasonable opportunity to being heard according to

the natural justice provisions.62 It should also be mentioned that any government action,

other than dismissal, removal or reduction in rank, affecting the government employee is

also subject to natural justice principles.63

58Board of High school and Intermediate Education, Uttar Pradesh Allahabad v. Ghanshayam AIR 1962

SC 1110.59Jawaharlal Nehru University v. B S Narwal, AIR 1980 SC 1666. 1060Jagdish Pandey v. Chancellor, University of Bihar, AIR 1968 SC 353.61Managing Director, Uttar Pradesh Warehousing Corporation v. Vijay Narayan Vajpayee, AIR 1980 SC840.

62Arjun Chaubey v. Union of India, AIR 1984 SC 1356.

63Gajanan L. Pernekar v. State of Goa, AIR 1999 SC 3262.


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Against Pensioners-When a civil servant retires from service, he is entitled to receive

pension. The government cannot reduce or withhold the pension of the person without

giving the pensioner an opportunity to make his defense.64Similarly, the gratuity payable

to a person upon retirement cannot be reduced without giving the employee a reasonableopportunity to be heard.65

3.3. Miscellaneous situations

There are certain situations where a fair hearing is given to the person concerned either

by characterising the functions discharged by them as quasi-judicial or without

characterising the functions as quasi-judicial, but holding in each case the principles of

natural justice. They include-

(a)

termination of citizenship of a citizen on the ground that he has acquired the

citizenship of another country66

(b)

when a cooperative society applies for winding up process

(c)

passing, an order of forfeiture of past service of a government employee for

participation in an illegal strike.67

(d)

impositions of damages by a commissioner for failure to deposit provident fund by

the employer68

(e)

withdrawing protection granted to a tenant against eviction under a statute

(f)

deletion of name from the electoral roll69

64

State of Punjab v. K R Erry, AIR 1973 SC 834.

65Union of India v. G. Gangayutham, AIR 1997 SC 3387. 1166Mohd Ayub Khan v. Comr of Police, Madras, AIR 1965 SC 1623.

67Shiv Shankar v. Union of India, AIR 1985 SC 514.

68Organo Chemical Industries v. Union of India, AIR 1979 SC 1803.69Lal Babu Hussain v. Electoral Registration Officer, AIR 1995 SC 1189.


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Natural justice is not only observed in cases where statutory power is being exercised,

but also in cases which involves civil consequences to a person70

4. Application of Natural Justice in Bangladesh

4.1. The Constitution

In Bangladesh the enforcement principles of natural justice are ensured by several

provisions of our constitution. Article 27 of the Constitution of Bangladesh states 'all

citizens are equal before law and are entitled to equal protection of law'.71

Further Art.

135(2) of the Constitution provides, no person who holds any civil post in the service of

Republic shall be dismissed, removed or reduced in rank until he has been given areasonable opportunity of showing cause why action should not be taken.

4.2. The Case Laws

The superior courts of Bangladesh, most notably the Honourable High Court Division,

have consistently refused to hear matters which may remotely give rise to any conflict of

interest by either being embarrassed to hear the matter or by referring the matter to some

other competent bench. This approach of the court is undoubtedly commendable and will

help strengthen public confidence in the judiciary. However, recently there have been

some cases in the High Court Division which appear to have not strictly adhered to this

age-old cardinal principle of law.

1.

The principles of natural justice are inherent in every society aspiring for a

civilised living. It further observes that according to the third paragraph of the

Preamble of the Constitution, the fundamental aim of the State is a society in

which the rule of law, the fundamental human rights and freedom, equality and

justice, political, economic and social shall be secured. To treat a person in

70Apeejay (Pvt) Ltd. V. Union of India, AIR 1978 Cal 577.

71Article 27 of the Constitution of the Peoples Republic of Bangladesh


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violation of the principles of natural justice would amount to arbitrariness and

discriminatory treatment in violation of the right guaranteed by Article 27 of the

constitution.72

2.

The rules of natural justice require an adjudicator to act fairly, in good faith andwithout bias or conflict of interest. They also require an adjudicator to allow each

party adequate opportunity to present its case and respond to its opposition's case.

The essential feature of the principles of natural justice is that no person should be

deprived of his right without a hearing before an independent authority its

purpose is to prevent miscarriage of justice.73

3.

The words "failure of justice" is not justice in the abstract or moral sense nor even

justice according to natural law. Its content has not as yet been correctly

determined nor is it capable of such precise definition. To constitute a denial of

natural justice there must be a violation of some fundamental principle of law or

procedure of such importance that it would shock the conscience of the court and

it would consider it to be a Case where the substance of a fair trial had been

denied.74

4.

Denial of natural justice would be inferred where a person sought to be

condemned or to be adversely affected is not given any opportunity of being heard

in his defence or where the judge himself is interested in the matter by reason of

some pecuniary or other interest or where there has been such other flagrant

disregard of procedure.75

5.

Section 9(2) of the Public Servants (Retirement) Act, 1974 (hereinafter referred to

as the Act) has no guidelines for its appreciation and violates the principles of

Natural Justice; the authority has issued the impugned order compulsorily retiring

72Abdul Latif Mirza Vs. Bangladesh 31 DLR (AD) 3373B. S. Agents vs. Bangladesh (1979) 31 DLR (AD) 27274Bharat Tewari vs. N. Hossain (1958) 10DLR 481; (1959) 11 PLR 276

75Bharat Tewari vs. N. Hossain (1958) 10 DLR 481; (1959) 11 PLR 276


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the petitioner by exercising their power under the said statute in a capricious and

discriminatory manner which is a clear case of "fraud on power".76

6.

Without initiating any proceeding or even without issuing any notice the action

impugned against was taken by the respondent No.-1 which is certainly inviolalion of principle of natural justice and also flouts the provision of Article 40

of the Constitution by which right to trade, business and profession of a citizen

have been guaranteed. For that reason as the matter is related with the

interpretation of violation of principle of natural justice and different Articles of

the Constitution in particular Article 40, this writ petition is maintainable even

without exhausting the provision of appeal envisaged under rule 22 of the Customs

Agent Licensing Rules, 1986...........Chapter 17 of the Customs Act deals with the

provision relating to offences and penalties, While dealing with the offences and

penalty in accordance with the different provisions of the said Chapter principle of

natural justice must be observed in the procedure of departmental or judicial, for

trial of Customs offences, This principle is certainly applicable as well upon the

rules framed under Customs Agent Licensing Rules, 1986, These are a clear nexus

between the two which is palpable.77

7.

Principle of Natural Justice : High Court Division made adverse remark against

the petitioner without affording her any opportunity to explain her position.

Adverse remarks are required to be expunged for ends of justice.78

8. Adverse Remarks Before making observations and giving directions High Court

Division acted illegally in not giving any notice to the appellants which is a gross

violation of the principle of natural justice and consequently, the remarks should

be expunged.79

76AKM Mazharul Haq Chowdhury vs. Bangladesh77Saint Martin Commodities Limited vs. Chairman & Joint Commissioner, Licensing Authority Customs

House78Jesmin Anwar vs. State and anothers 2012 AD79Rajib Kamrul Hasan vs. State 2001 AD


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9.

If the summons are not duly served on the defendant, that is a good ground for

setting aside an exparte decree under Order 9, Rule 13 of the CPC. In such a case

question of knowledge is not at all relevant and exparte decree will be set aside

even if the defendant had knowledge of institution of suit.

80

5. Natural Justice as Mechanism to Diminish Arbitrary Discretion

Discretion is individual judgment, the power of free decision-making. A public officials

power or right to act in certain circumstances according to personal judgment and

conscience, often in an official or representative capacity. In administrative law, it

denotes a public officials or agencys power to exercise judgment in the discharge of its

duties. Abuse of discretion may result from an adjudicators failure to exercise sound,

reasonable, and legal decision-making. And the discretion is arbitrary when it depends on

individuals discretion; specifically determined by a judge rather than by fixed rules,

procedures or law. Arbitrary discretion ensues when it is founded on prejudice or

preference rather than on reason or fact.81

Natural justice acts an effective check on the arbitrary exercise of the discretionary power

of any adjudicating authority. There are many instances throughout the global legal

system where principle of natural justice creates hindrance upon arbitrary exercise of

discretionary power.In 1971 Lord Denning82

rightly pointed out that,

It is now well-settled that a statutory body which is entrusted by statute with a

discretion, must act fairly. It does not matter whether its functions are described

as judicial or quasi-judicial... or administrative... it must, in proper cases give aparty a chance to be heard.

80Md. Abdur Rashid & another vs. Abdul Barik and others, 1984 BLD (AD) 83

81BLACKs Law Dictionary82Breen p. Amalgamated Engineering Union [19711 1 All E.R. 1148


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5.1. Discretion cannot Undermine Natural Justice

The mere fact that a decision-maker is conferred wide discretion by law is not reason

enough for a weakening of the requirements of natural justice. In the United Kingdom

context, this is demonstrated by Ahmed v. H.M. Treasury (No. 1) (2010). The Treasury

had exercised powers to freeze the appellants' financial assets and economic resources on

the ground that it reasonably suspected the appellants were or might be persons who had

committed, attempted to commit, participated in or facilitated the commission of

terrorism, pursuant to the Terrorism (United Nations Measures) Order 2006 and the Al-

Qaida and Taliban (United Nations Measures) Order 2006 made under the United

Nations Act 1946. The Supreme Court of the United Kingdom held that since the Al-

Qaida Order made no provision for basic procedural fairness, it effectively deprived

people designated under the order the fundamental right of access to a judicial remedy

and hence was ultra vires the power conferred by the United Nations Act 1946 for the

making of the Order.83

5.2. Discretion must be Reasonable

The exercise of discretionary power is required also to be reasonable. De Smith says:

The authority in which discretionary power is vested can be compelled to

exercise that discretion but not to exercise it in any particular manner. In general

a discretion must be exercised only by the authority to which it is committed. That

authority must genuinely address itself to the matter before it; it must not act

under dictation of another body or disable itself from exercising a discretion in

each individual case. In the purported exercise of its discretion it must not do what

it has been forbidden to do nor must it do what it has not been authorised to do. It

must act in good faith, must have regard to all relevant considerations, must not

83Ahmed, p. 685, para 246, per Lord Mance J.S.C.


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seek to promote purposes alien to the latter or to the spirit of the legislature that

gave it power.., and must not act ARBITRARILY AND CAPRICIOUSLY.84

When it is said that a discretionary power has been exercised arbitrarily or unreasonably

it means that the purported action is irrational, foolish, unwise, absurd, silly,

preposterous, senseless, stupid, injudicious, nonsensical.85

In Prescott v. Birmingham Corp.86 a corporation was given powers to maintain and

operate a transport system and to charge such fares as it thought fit. It decided to provide

free traveling facilities for women over 65 and men over 70 years. The court of appeal

held that the action was unreasonable because it was economically stupid.

6. Conclusion

The principle of natural justice has developed into a universal jurisprudence for a number

of good reasons. Firstly, the age-old principle has been applied to administrative and

adjudication process to ensure procedural fairness and to free them from arbitrariness.

Secondly, application of this principle helps bolster public confidence in the judiciary by

ensuring that no one having any interest or bias in respect or any matter takes part in the

decision-making relating to that matter. Thirdly, it is often said that it 'is of fundamental

importance that justice should not only be done, but should manifestly and undoubtedly

seen to be done'. By ensuring that the judge is not interested in the outcome of any

adjudication, the parties can 'see' that justice is being done to their cause. In this regard, it

should be noted that whether a judge gave an actually biased judgment by judging his

own cause is not material; the judgment is vitiated if there is a real likelihood of the judge

being biased, which can be easily presumed if the judge himself is the aggrieved party.

The development of this principle helps control arbitrary exercise of discretionary power

of adjudicating authorities almost all over the world.

84de Smith, op. cit. pp. 252-253. For a fuller discussion on the topic see p. 246 - 31.

85Southern Kansas State Lines Co. V. PCS, (1932) 135 KANS, 65786[1954] 3 AII E.R. 698;

concept of natural justice

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